IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Tom Arbino, :

Plaintiff, :

v. : Case No. 2:12-cv-705

 : JUDGE GREGORY L. FROST

State of Ohio, Magistrate Judge Kemp

:

Defendant. 

REPORT AND RECOMMENDATION

Plaintiff, Tom Arbino, a non-prisoner pro se litigant, filed

this action in the Western Division of this Court, and asked for

leave to proceed in forma pauperis. The case was then transferred

to the Eastern Division of this Court and assigned to the

Honorable Gregory L. Frost, United States District Judge, and to

the undersigned Magistrate Judge. Mr. Arbino qualifies

financially for in forma pauperis status, so his motion for leave

to proceed (Doc. 1) is granted. However, the Court recommends

that this action be dismissed.

I.

28 U.S.C. §1915(e)(2) provides that in proceedings in forma

pauperis, “[t]he court shall dismiss the case if ... (B) the

action ... is frivolous or malicious [or] fails to state a claim

on which relief can be granted....” The purpose of this section

is to prevent suits which are a waste of judicial resources and

which a paying litigant would not initiate because of the costs

involved. See Neitzke v. Williams, 490 U.S. 319 (1989). A

complaint may be dismissed as frivolous only when the plaintiff

fails to present a claim with an arguable or rational basis in

law or fact. See id. at 325. Claims which lack such a basis

include those for which the defendants are clearly entitled to

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immunity and claims of infringement of a legal interest which

does not exist, see id. at 327-28, and “claims describing

fantastic or delusional scenarios, claims with which federal

district judges are all too familiar.” Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992). A complaint may not be

dismissed for failure to state a claim upon which relief can be

granted if the complaint contains “enough facts to state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Pro se complaints are to be

construed liberally in favor of the pro se party. See Haines v.

Kerner, 404 U.S. 519 (1972). The Court is required to review Mr.

Arbino’s complaint under these standards.

II.

The gist of the complaint which was filed in this Court

appears to be Mr. Arbino’s assertion that he cannot legally be

barred from filing cases or motions in the courts of Ohio based

on Ohio’s vexatious litigator statute, Ohio Rev. Code §2323.52. 

That statute provides, in pertinent part, that a person who is

declared to be a vexatious litigator may be ordered not to file

or continue any legal proceedings in Ohio’s common pleas,

municipal or county courts without first obtaining leave of that

court to proceed. It also states that leave is to be given if

the court to which the new filing is directed finds “that the

proceedings or application are not an abuse of process of the

court in question and that there are reasonable grounds for the

proceedings or application.” Rev. Code §2323.52(F).

According to Mr. Arbino, the Hamilton County Common Pleas

Court, by way of an order signed by Judge Luebbers dated

September 14, 2011, declared him to be a vexatious litigator and

directed him to obtain leave from the presiding judge of any Ohio

court in which he wished to file papers before doing so either in

existing litigation or in order to start a new case. More

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recently, he claims that the same court refused to accept for

filing a complaint which he wished to file against a defendant

named as “UC Health” because he had not obtained leave to file

that complaint. He also attached to the documents he filed in

this Court a letter from the Clerk of the Municipal Court signed

by the Bailiff to Judge Ten N. Berry dated July 11, 2012; that

letter explains that the court could not file the papers he

submitted and that he would have to speak to someone in the

Clerk’s office “regarding your difficulty filing your documents.” 

It is not entirely clear if that letter relates to the other

documents he filed here, since those are all captioned in the

Common Pleas Court rather than the Municipal Court. In any

event, Mr. Arbino claims that the prior order and the Ohio

courts’ refusal to file his papers violate his rights under the

Due Process Clause of the Fourteenth Amendment to the United

States Constitution and that he has the “Constitutional right to

file whatever he pleases.”

 III.

This does not appear to be the first time that Mr. Arbino

has filed suit in federal court regarding his having been found

to be a vexatious litigator. In Case No. 1:12-cv-203 (S.D.

Ohio), he filed a complaint alleging that a number of his cases

in various state courts had been dismissed improperly. At least

some of the dispositions about which he complains appear to have

been based on his vexatious litigator status. See Complaint,

Doc. 5, Case No. 1:12-cv-203. In that case, the assigned

Magistrate Judge, the Honorable Karen L. Litkovitz, recommended

that the complaint be dismissed under 28 U.S.C. §1915(e)(2)

because Mr. Arbino had named only the State of Ohio as a

defendant, and that “[a]bsent an express waiver, the Eleventh

Amendment to the United States Constitution bars suit against a

State or one of its agencies or departments in federal court

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regardless of the nature of the relief sought.” Arbino v. Ohio,

2012 WL 1756856, *2 (S.D. Ohio April 2, 2012). Mr. Arbino

objected to that recommendation, but his objection was overruled

and the case was dismissed. Arbino v. Ohio, 2012 WL 1755828

(S.D. Ohio May 16, 2012).

Like the prior case, the only named defendant in this case

is the State of Ohio. Despite having been told that the State of

Ohio is, by virtue of the Eleventh Amendment to the United States

Constitution, immune from suit in federal court, Mr. Arbino again

seeks injunctive and monetary relief from the State. This Court

is in full agreement with Judge Litkovitz’s determination that

such a suit cannot be maintained and that a complaint naming only

the State of Ohio as a defendant is subject to dismissal. That

is what the numerous decisions from the United States Supreme

Court cited in her Report and Recommendation hold, and the Judges

of this Court are bound to follow (and do follow) those decisions

and holdings. See, e.g., Lee Testing & Engineering, Inc. v. Ohio

Dept. of Transp., __ F.Supp. 2d __, 2012 WL 668913, *3 (S.D. Ohio

Feb. 29, 2012)(Frost, J.)(“Ohio has not waived its Eleventh

Amendment immunity from suits for money damages in federal

court); Tackett v. Ohio Dept. of Rehabilitation and Correction,

2011 WL 5076401, *3 (S.D. Ohio 25, 2011)(Frost, J.)(“the Eleventh

Amendment bars a suit against a state or one of its agencies in

federal court unless the state has given express consent,

regardless of the relief sought”), citing Pennhurst State School

& Hospital v. Halderman, 465 U.S. 89, 97-98 (1985). 

It is possible that this action is also barred by the

doctrine of res judicata, at least to the extent that Mr. Arbino

has again attempted to raise the constitutionality of the order

declaring him a vexatious litigator in a suit brought against the

State of Ohio, and the issue of whether he may sue the State of

Ohio for relief from that order has already been litigated. 

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However, in light of the clear bar to suit presented by the

Eleventh Amendment, the Court need not reach that issue. 

IV.

For all of these reasons, it is recommended that this action

be dismissed under 28 U.S.C. §1915(e)(2).

V.

If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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